Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 936

Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 936

Because the plaintiffs had done all they could to withdraw the caveats, the defendants' notice of motion was dismissed with liberty to apply. The plaintiffs' tardy compliance with the caveat orders justified an indemnity costs order against them for the costs of the day's hearing, but the defendants' unsuccessful and baseless attempt to set aside the judgment occupied the bulk of the motion and justified an order that they pay 90 per cent of the plaintiffs' other costs of the motion on the indemnity basis. Short holding orders were made to preserve the position pending approach to the Court of Appeal.

Jurisdiction
Australia
Judgment Date
08 October 2002
Procedural Posture
Notice of Motion in Equity Proceedings Concerning Caveats, Costs, Stay of Monetary Judgments and Continuation of Injunctions Pending Appeal / Post Judgment Determination of Notice of Motion and Costs
Outcome
Defendants' notice of motion dismissed; mixed indemnity costs orders made; monetary judgments stayed and existing injunctions continued until 4 November 2002; liberty to apply granted.
Legal Topics
['departing From the General Rule as to Costs' 'indemnity Costs' 'costs Where Different Results Occur on Distinct Claims' 'withdrawal of Caveats' 'stay of Monetary Judgments Pending Appeal' 'continuation of Injunctions to Maintain the Status Quo']
['procedure' 'costs' 'equity'] ['departing From the General Rule as to Costs' 'indemnity Costs' 'costs Where Different Results Occur on Distinct Claims' 'withdrawal of Caveats' 'stay of Monetary Judgments Pending Appeal' 'continuation of Injunctions to Maintain the Status Quo']

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Procedural Posture

Notice of Motion in Equity Proceedings Concerning Caveats, Costs, Stay of Monetary Judgments and Continuation of Injunctions Pending Appeal / Post Judgment Determination of Notice of Motion and Costs

Legal Issues

  1. 1 ["Whether the defendants' notice of motion should be dismissed after the plaintiffs lodged a withdrawal of the caveats." 'What costs order should be made where the defendants succeeded in prompting withdrawal of the caveats but the plaintiffs succeeded on the other issues in the motion.' 'Whether costs should be ordered on the indemnity basis.' 'What holding orders should be made pending consideration by the Court of Appeal.']

Ratio Decidendi

Because the plaintiffs had done all they could to withdraw the caveats, the defendants' notice of motion was dismissed with liberty to apply. The plaintiffs' tardy compliance with the caveat orders justified an indemnity costs order against them for the costs of the day's hearing, but the defendants' unsuccessful and baseless attempt to set aside the judgment occupied the bulk of the motion and justified an order that they pay 90 per cent of the plaintiffs' other costs of the motion on the indemnity basis. Short holding orders were made to preserve the position pending approach to the Court of Appeal.

Court Disposition

Defendants' notice of motion dismissed; mixed indemnity costs orders made; monetary judgments stayed and existing injunctions continued until 4 November 2002; liberty to apply granted.

Orders

  • ["The defendants' notice of motion is dismissed." "The plaintiffs pay the defendants' costs of today on the indemnity basis; otherwise the defendants pay 90 per cent of the plaintiffs' costs of the notice of motion on the indemnity basis." "All monetary judgments in the plaintiffs' favour are stayed up to and...